Paul Hogarth
‘Should there ever be a case for absolute anonymity in legal proceedings, and if so, why and for whom?’
Introduction
The argument for an extension of anonymity in legal proceedings is one that has gained momentum in recent years. A string of high profile arrests and trials, with many resulting in not-guilty verdicts, has led to calls for an extension by politicians and campaigners (such as the wrongly accused Nigel Evans MP)[1] of anonymity further along in the criminal justice process. Anonymity’s role in a legal system is to provide protection to the damage that can be caused by being named in legal proceedings. That damage may be, in the case of celebrities and members of the public, reputational. Further damage to a person’s mental and physical wellbeing, or their chances of rehabilitation, may be caused by their identification in a court.
The arguments for anonymity are substantial, yet despite recent increases in anonymised cases, anonymity is not yet a principle in the law of England and Wales. Any extension of anonymity to the point of being absolute must be counterbalanced against the more established principle that the administration of justice, be it civil or criminal, must be open to the public in order to allow a full debate and scrutiny of the issues raised by the law. I intend to argue that it is the latter principle of openness which must be supported, and that the situations where anonymity is permitted are limited to two exceptions. These exceptions shall be discussed first, followed by submissions on why openness should overrule the case for absolute anonymity.
Limited absolute anonymity
The courts in England & Wales on a daily basis deal with cases featuring sensitive issues and vulnerable parties. Part 39 of the Civil Procedure Rules supplements a number of laws and procedures designed to protect children or protected parties. Courts are given the power to order anonymity in certain cases. This exception is typically applied to parties who are children or otherwise vulnerable. This exception where absolute anonymity may be conferred on a vulnerable party constitutes one of the narrow exceptions where absolute anonymity may be awarded.
The courts face a balancing act in judging the damage legal proceedings would do to a protected party against the need for open justice and public hearings. In the case of children, the need for anonymity is clear. Firstly, the UN Convention of the Rights of the Child places, within the criminal justice system, an emphasis on rehabilitation rather than state retribution for a crime. Consequently, with cases generating significant public interest, such as the prosecution of John Venables, there is a requirement that absolute anonymity be conferred in order to preserve the overall aim of rehabilitation of young offenders.
Secondly, where children will retain an ongoing need for protection and supervision, anonymity will allow, in cases of clinical negligence for instance, the protection of vulnerable children and persons from manipulation when awarded damages. This principle was discussed in the recent case of JX MX v Dartford[2], where significantly, the burden was shifted to provide that claimants may be shielded by anonymity unless another party or the press makes a legitimate objection. With children and very vulnerable parties absolute anonymity is a necessary exception that restricts the potential for damage to be done by proceedings. In short, it outweighs the need for absolute open justice.
The second and narrow exception to the principle of open justice applies to witnesses and third parties who can be protected by the shield of anonymity. The purpose of this is again the result of a balancing act by the courts to encourage evidence to be given and for additional accusations against a party to be brought forward. This exception has been particularly effective in opening up recent high profile cases of sexual abuse in Operation Yewtree.[3] The protection afforded by absolute anonymity has the positive effect of fostering disclosure of important information relevant to a trial, which may not have become available otherwise. This exception, much more than the first, must be subject to controls and limitations in order to maintain balance between accuser and accused in sensitive criminal cases.
The above two exceptions constitute the instances where anonymity may confer a positive benefit upon legal proceedings in England & Wales. With children and vulnerable witnesses, the conferring of anonymity has the almost paradoxical effect of making the administration of justice freer and easier for judges, as claimants and witnesses enter the legal system knowing they will not be prejudiced by the revealing of names and personal details.
The problems with anonymity
Beyond the limited exceptions above, the extension of a principle of absolute anonymity in legal proceedings would be damaging to the legal process in England & Wales. Openness in the legal process has played a fundamental part in developing the largely transparent system we see today. History provides an indication of both the benefits of openness and the dangers of anonymity.
With the criminal justice system, the public nature of hearings has benefitted all users of the system for centuries. It has been a benefit in deterring crimes and helping establish the rule of law. Writing about the criminal justice system in the 18th Century, historian Douglas Hay describes how the old assizes conveyed a sense of ‘majesty’, ‘justice’ and ‘mercy’[4], the result was a criminal justice system that the public at large opted into, with the knowledge that they were entering a system that worked both in their and the state’s favour. Criminal courts today, especially the crown court, retain a sense of spectacle with bewigged judges, barrister and clerks that emphasises the seriousness of the crimes that are tried there. The identification and scrutiny of a defendant by a jury made up of the public, a system extending back to Ancient Greece, remains the fairest way of deciding the guilt of an individual.
If a system of absolute anonymity was enacted, the result would be to strip away this history and the benefits derived from it. With the criminal justice system, a widespread system of anonymity would relegate the perceived seriousness of being tried for a crime. With the cloak of anonymity, the soft power conveyed by the criminal courts and their procedure would be lost, leaving only the hard power of sentencing. The result would be criminal courts that resemble administrative tribunals, of which the public feels they have no stake as they are unaware of the events that happen within them.
Public confidence in the criminal justice system is shaky, according to a 2010 survey published by the MoJ, 44% of the public were satisfied with the effectiveness of the criminal justice system.[5] It is fair then to pose the question ‘will increased anonymity increase this level of satisfaction?’, and considering that common criticisms of the current system include its overall remoteness from the public and it’s inadequate treatment of victims, greater anonymity would not only place the public further away from the system, but compound the criticisms currently facing it.
Consequently, in the context of criminal justice, public hearings and identifiable parties have a real role to play in the maintenance of an internationally acceptable criminal justice system. Anonymity would damage public perceptions of the courts, limit the court’s ability to deter further crime and play a part in insulating it from scrutiny and criticism. The latter of these consequences is perhaps the most serious, and warrants further discussion.
At the beginning of the 20th Century, in the case of Scott v Scott[6] an important principle of transparency in the legal process was described by Lord Shaw:
“If the judgments...were to stand, then an easy way would be open for judges to remove their proceedings from the light and to silence for ever the voice of the critic, and hide the knowledge of the truth. Such an impairment of right would be intolerable in a free country, and I do not think it has any warrant in our law.”
This powerful statement is unequivocal in its criticism of anonymity in proceedings. The Lords in Scott recognised that, if they did not make a bold statement regarding the benefits of open justice, that anonymity would creep through the system procedurally and incrementally. Such an analysis of how anonymity can slowly spread is borne out by the number of cases featuring anonymous parties in Supreme Court hearings, which increased from 2% in 2002 to 24% in 2010[7], and prompted Lord Rodger to include a quote from counsel in Guardian News Media v Ahmed [8] that the docket read “like an alphabet soup”. A rapidly developing procedural process of anonymysing parties in disputes has the potential to convert the legal system from public to private, a change that would have wide-ranging and negative implications in civil courts.
The public’s ability to follow the cases that progress through the courts relies on the media being able to be present and report on what happens. The anonymisation of a party in proceedings cripples its relevance to the public, as the restrictions on reporters goes beyond changing the name of a party to a single letter, and ensures that any reports of the case are effectively censored so as to make the identification of a party impossible. In civil proceedings, aside from the narrow exception of those who are vulnerable, anonymisation is simply untenable as a concept in the damage it will do to the public’s ability to receive news about how justice is administered and how cases are decided. It is possible to envisage a situation where a principle or law allowing a party to gain anonymity might be exploited by a company for instance, seeking to protect itself from the reputational damage caused by litigation.
However in civil proceedings there are numerous paths for parties to take to ensure anonymity, including arbitration and mediation, such forms of alternative dispute resolution are available in the vast majority of civil cases, and mandatory in some. Litigation has a purpose of being a publically recognisable settlement of a dispute, the publicity being a key factor in ensuring the parties accept the results of it. In a globalised world, the affairs of multinational companies and wealthy individuals deserve scrutiny, if not just for the public, then third parties such as shareholders, creditors and customers.
The arguments for and against a system of anonymisation of parties goes further, and forms part of a growth in secrecy in the courts system as a whole. The most publicised increase in secrecy has been the use of closed material proceedings in terror trials, but there have been additional indications that secret and anonymised proceedings take place frequently in welfare cases brought by Councils across England & Wales[9]. In light of these developments, it is fair to see the question of extending anonymity as part of a potential slippery slope leading toward the conversion of justice from a public to a private affair.
Conclusion
What I have hoped to demonstrate is that the historical transparency and publicity of the English and Welsh justice system is worth preserving, and that instances where absolute anonymity may be granted must be kept within tight confounds in order to ensure that the principle of openness is not eroded or diluted. Anonymity can provide valuable protection to children and the vulnerable but beyond that the disadvantages of extending a system of absolute anonymity will do far more harm than good to both civil and criminal justice.
Paul Hogarth
4
[1] http://www.theguardian.com/politics/2014/apr/14/nigel-evans-anonymity-sex-offences
[2] [2015] WLR(D) 77
[3] http://www.telegraph.co.uk/news/uknews/crime/10937111/Witch-hunt-Operation-Yewtree-vindicated-by-Rolf-Harris-case.html
[4] D. Hay – “Property, Authority and the Criminal Law” from “Albion’s Fatal Tree” - 1975
[5] https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/confidence-cjs-british-crime-survey.pdf
[6] [1913] AC 417
[7] M. Amos – “An Unprincipled Mess: Party Anonymity in Legal Proceedings in the United Kingdom” Queen Mary UoL
[8] [2010] UKSC 1
[9] http://www.telegraph.co.uk/news/uknews/law-and-order/11385569/8-out-of-10-councils-using-secret-courts.html